CITATION: Her Majesty the Queen v. Wilson, 2017 ONSC 6383
COURT FILE NO.: CR-16-006-0000
DATE: 20171026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Michael Martin, for the Crown
- and -
Donald Wilson
David O’Connor, for the Accused
Accused
HEARD: October 20, 2017
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] On April 25, 2017, Donald Wilson (“Wilson”) entered guilty pleas and was found guilty of twenty criminal charges, the particulars of which are as follows (all statutory references are to the Criminal Code).
[2] Count one – arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started a fire inside an apartment building at 944 2nd Avenue East in Owen Sound, in the downtown area, and then fled the scene. The flames were extinguished by a resident. There was minimal damage to the structure of the apartment building, estimated at $15,000.00. There were many persons occupying the apartments at the time. The building was evacuated. Five tenants were taken to the hospital because of smoke inhalation. Garbage and paper were used by Wilson to start the fire. Wilson told others that persons inside the building had screwed him over and had to pay, although the Defence does not necessarily admit that the motive was revenge.
[3] Count two - arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started a fire inside a house at 1075 3rd Avenue East in Owen Sound, in the downtown area, and then fled the scene. The fire was extinguished on its own within minutes. There was minimal damage, estimated at $100.00. Paper was used by Wilson to start the fire. The place was vacant at the time.
[4] Count six – arson, damage to property, contrary to section 434 - on August 10, 2015, Wilson started a fire to a shed located at 386 13th Street East in Owen Sound, and then left the scene. The fire caused an explosion, destroyed the shed, a motorcycle, garden tools, a utility trailer, a temporary shelter, a snowmobile, and part of a fence close to a residence. The damage is estimated at $10,000.00. An accelerant, likely gasoline, was used by Wilson to start the fire.
[5] Count seven - arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started a fire which spread to a residence at 1320 4th Avenue East in Owen Sound. The two occupants escaped without injury, however, the residence was completely engulfed in flames and destroyed. The loss was $200,000.00, including contents.
[6] Count eight - arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started a fire which spread to a residence at 1322 4th Avenue East in Owen Sound (this is the same fire that forms the substance of counts six and seven). The two occupants were asleep but were rescued by a passing paramedic who saw the flames and heroically forced his way into the residence. The residence was completely destroyed. The loss was $200,000.00, including contents.
[7] Counts nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen – arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started two fires at a townhouse complex located at the corner of 4th Avenue East and 14th Street East in Owen Sound, and then fled the scene. An accelerant, likely gasoline, was used by Wilson to start one fire on a patio near a large window and close to two propane tanks. The fire was extinguished by a police officer who responded to the scene. The second fire was set by Wilson underneath a wooden deck. Again, an accelerant, probably gasoline, was used. That fire spread quickly, engulfing the ten-unit complex in flames. Most of the residents managed to escape on their own, however, four persons had to be extricated through windows thanks to the heroic assistance of the same police officer. The entire complex was destroyed. The loss was $1.2 million, including contents.
[8] It is important to note that the units in the complex were occupied by multiple persons at the time of the fires. Unit 1406 (count nine) had three persons inside. Unit 1412 (count ten) had two persons inside. Unit 1424 (count eleven) had two persons inside. Unit 1430 (count twelve) had one person inside. Unit 1442 (count thirteen) had two persons inside. Unit 390 (count fourteen) had two persons inside. Unit 392 (count fifteen) had three persons inside. Unit 394 (count sixteen) had two persons inside. Unit 396 (count seventeen) had three persons inside. And unit 398 (count eighteen) had three persons inside.
[9] Many of the victims of these fires would have been sleeping at the time as the crime-spree occurred in the early morning hours of August 10th, after a night of partying with booze and drugs and Wilson walking the downtown streets with two others.
[10] Counts nineteen, twenty and twenty-one – arson, disregard for human life, contrary to section 433(a) – on August 10, 2015, Wilson started a fire underneath a wooden deck at the rear of a residence at 393 15th Street East in Owen Sound (count nineteen), and then fled the scene. An accelerant, likely gasoline, was used by Wilson. Luckily, eight occupants, including three children, escaped. The residence and its contents were completely destroyed. The loss was $544,000.00. The fire spread to the residence at 387 15th Street East (count twenty). The occupant managed to escape, but the loss was $448,000.00. The fire also spread to 395 15th Street East (count twenty-one). The occupant escaped but incurred a loss of $203,313.00.
[11] Count twenty-three – arson, damage to property, contrary to section 434 - on August 10, 2015, Wilson started a fire to a shed located at 1700 6th Avenue East in Owen Sound, and then left the scene. An accelerant was used. Neighbours tried unsuccessfully to extinguish the flames. The shed and its contents were destroyed, resulting in a loss of $3,400.00.
[12] Count twenty-four - arson, damage to property, contrary to section 434 – during the rampage at the townhouse complex referred to above regarding counts nine through eighteen, Wilson decided to open the gas hatch of a motor vehicle and set the car on fire. The victim, after escaping his unit which was also ablaze, unwittingly tried to leave the scene in the car. Then he noticed that the gas tank was on fire. A quick-acting police officer, Rawn (who did a lot of heroic things on that morning), used a garden hose to extinguish the fire before the car’s gas tank exploded.
[13] In addition to the twenty criminal charges that Wilson pleaded guilty to, the Agreed Statement of Facts filed by counsel to support the pleas includes other matters that this Court may consider in imposing a fit sentence: Wilson causing a small fire outside a Synagogue near downtown Owen Sound (count three), Wilson breaking into the dwelling house at 1075 3rd Avenue East (count four), Wilson using gasoline to burn grass next to a shed at 1278 4th Avenue East in Owen Sound (count five), and Wilson using an accelerant to start a fire behind another shed at 1659 5th Avenue East in Owen Sound (count 22).
[14] Wilson’s criminal actions resulted in a total loss of $3,111,316.00.
[15] Wilson was arrested by the police on August 13th. Although he initially professed his innocence, after being confronted with the video evidence that the authorities had secured through a very competent investigation, Wilson confessed and offered an apology.
II. The Offender
[16] At the conclusion of the sentencing hearing, Wilson reiterated his sincere apology to the victims, the first responders and the entire City of Owen Sound. He indicated a willingness to get treatment for his alcohol addiction and stated that he must stop drinking.
[17] Wilson has a horrendous criminal record. Between 2002 and 2015, he racked-up some 45 convictions. Frankly, it is hard to fathom how it is possible for someone who is now 27 years old (he was even younger when he went into custody on these offences) to have that kind of criminal history.
[18] The past crimes run the full spectrum, or nearly so – mischief to property, possession of stolen property, assault, obstructing police, causing a disturbance, breach of bail, breach of probation, theft, unlawfully in a dwelling, narcotics, break and enter, and uttering threats. There are, however, no prior arson convictions.
[19] I have a letter from a corrections officer that Wilson has been polite and respectful while working as a unit server at the facility that he has been housed at over the past two plus years.
[20] I also have a letter from a lady named Carrie Anne Pew who has known Wilson for fourteen years. She speaks highly of him as a father, a friend and a neighbour.
[21] Wilson was assessed in late 2016 by Dr. Julian Gojer, forensic psychiatrist. A very thorough report was prepared, the penultimate conclusion of which is that Wilson was compliant with the testing performed and showed average intellectual functioning and memory abilities. No functioning impairment or cognitive deficits were noted.
[22] Dr. Gojer did observe, however, that Wilson has serious problems: alcohol abuse, the possibility of subtle brain damage caused by fetal alcohol exposure, and features of an antisocial personality disorder.
[23] Dr. Gojer was not surprised to learn that Wilson apparently has little to no memory of his arson-spree because of a blackout from alcohol.
[24] As Wilson is an Aboriginal person, I have the benefit of a thorough Gladue report.
[25] As indicated above, the offender is 27 years old. His mother is a registered Metis. His father is non-Native.
[26] Wilson has five siblings, one half-sister and one step-sister.
[27] There was domestic violence between Wilson’s parents, witnessed by the offender. His father spent some time in jail. There was also alcohol and drug abuse.
[28] Wilson’s mother drank alcohol during her pregnancy, and she thinks that Wilson likely has fetal Alcohol Spectrum Disorder.
[29] For a short period of time, Wilson was placed in the care of child welfare authorities. Then, at age 11 years, when the family moved from Timmins to Owen Sound, Wilson was placed into foster care for a longer duration.
[30] While in CAS care, Wilson was diagnosed with Attention Deficit Hyperactive Disorder, Attention Deficit Disorder and Obsessive Compulsive Disorder. He was prescribed medication.
[31] Wilson’s own alcohol and drug use began at the tender age of 10 years. Over time, he has used a variety of illicit substances including cocaine, crack, ecstasy, and crystal meth.
[32] Wilson’s parents separated when he was 11 years old.
[33] Wilson never completed high school. He was expelled at least once. He has a grade 10 education.
[34] It is a recognized fact that the apprehension of Aboriginal children and their placement into non-Aboriginal foster homes can have a traumatic effect. For Wilson, it could be that his placement in multiple non-Aboriginal foster homes over the years contributed to his instability, especially given that Wilson often ran away from those homes because of mental abuse that he was experiencing.
[35] At age 16 years, Wilson started living on his own. By then, he had been made a ward of the Crown.
[36] Wilson has a checkered employment history and has worked as a dishwasher and at two stone companies. He has been a frequent recipient of social assistance. Most recently, he worked doing odd jobs for a business called Pew Monuments.
[37] Wilson has one child – a daughter who is now seven years old. That girl was born when Wilson was 21 years old.
[38] In 2014, in a state of intoxication, Wilson injured his right hand after punching a beer bottle. He may require surgery someday.
[39] In 2015, Wilson’s relationship with the mother of his child, which union had lasted for about five years, came to an end, mainly because of Wilson’s substance abuse. Wilson essentially became homeless for a while.
[40] Wilson told the author of the Gladue report that he wants to pursue treatment for substance abuse at a Native residential facility. He has, not unexpectedly, been in custody since his arrest more than two years ago.
[41] Wilson’s presentence custody has been full of its own problems. He was found guilty of assaulting someone in the jail, and he has spent time in segregation for multiple infractions at the correctional centre.
[42] Very recently, in August 2017, while in jail, Wilson contracted a neck infection which required hospitalization.
[43] On the bright side, Wilson has attained a server position at the jail and has done well in that role. In addition, he has participated in some Native programming while incarcerated on these charges, such as smudging. He wants to apply for his official Metis card.
III. The Positions of the Parties
[44] The Crown requests the following sentence: fifteen (15) years’ imprisonment, less presentence custody of 805 days credited as 1207 days on a 1 to 1.5 scale, for a net sentence from today of 4268 days, plus ancillary Orders.
[45] Four thousand two hundred and sixty-eight days from today would be about 11.7 years.
[46] The Defence agrees with the calculation of presentence custody – the equivalent of 1207 days.
[47] The Defence requests a custodial sentence of two (2) years less one day, on top of the presentence custody, for the equivalent of 5.3 years in custody. The jail sentence would be followed by three (3) years of probation.
[48] The Defence does not oppose any of the ancillary Orders sought by the Crown.
IV. Analysis
[49] At the outset, I will indicate that the ancillary Orders sought by the Crown are hereby issued, unopposed: a lifetime firearms and weapons ban under section 109 of the Criminal Code, and a secondary DNA Order.
[50] In addition, the mandatory victim fine surcharge is imposed on each conviction. Given the sheer number of convictions, Wilson is granted three (3) years to pay upon his release from custody.
[51] The only issue left to decide is how much more time in custody is appropriate.
The Legal Parameters
[52] The maximum penalty for the most serious offence committed by Wilson, that under section 433(a), is life imprisonment. There is no minimum punishment facing Wilson.
The Basic Legal Principles on Sentencing
[53] Sentencing is a highly discretionary and individualized process.
[54] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.
[55] The paramount sentencing principles most applicable here are denunciation, general deterrence, specific deterrence, the need to separate this particular offender from society, and rehabilitation.
[56] Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.
[57] These are extremely serious crimes. They approach the level of the worst arson offences, short of someone dying or being seriously injured. The financial losses are staggering. The number of places destroyed is mindboggling. The number of lives placed at risk, both occupants and first responders, is significant. Bluntly put, Wilson terrorized the City of Owen Sound.
[58] And why? Who knows. Undoubtedly, the carnage was fueled by Wilson’s high level of intoxication.
[59] The Crown has filed photographs of the burning and burned structures. They show towering flames, devastation and numerous emergency personnel fighting the fires. They show aerial views of dwelling units that have been gutted by fire, without roofs.
[60] The Crown has filed a letter from the Fire Chief. It speaks of the massive losses and the truly exceptional circumstances that firefighters, other first responders, the victims and the public at large were confronted with.
[61] The Crown has filed a statement from one of the victims, Ms. Korvenpaa. It speaks about being woken up by firemen who saved the lives of her and her daughter. They watched their house go up in flames. Their pet bunny blown up. Their cat killed. Their street looking like a “war zone”. $200,000.00 in losses, including some irreplaceable contents. Lost work and wages. Many tears and much anger. And a lot of adjustment to having to live somewhere else.
[62] Ms. Korvenpaa, of course, is merely one of Wilson’s victims.
[63] At the sentencing hearing, I heard from a hero, paramedic supervisor Kyle Stewart. He was forced into action in ways that were not anticipated, like forcing his way into a burning home to rescue a girl from her bedroom, resulting in Mr. Stewart’s own hospitalization for smoke inhalation.
[64] I also heard testimony from Patrick Rawn, the brave police officer mentioned above in these Reasons. He risked his own life to help save others, including one couple who was stranded inside their home with flames surrounding the exit and only a window to try to escape through.
[65] Arson is a hideous crime. A spree of arsons in the heart of a City is all the more depressing.
[66] As for Wilson, he similarly approaches the level of the worst offender. If he had been previously convicted for arson, he would be even closer to that description.
[67] He has a terrible criminal record, replete with property offences. And he suffers no intellectual or cognitive impairments to a degree that might explain, though not excuse, his criminal rampage. He simply drinks alcohol and uses drugs in obscene quantities and then terrorizes innocent people.
[68] I pause here, however, to mention two additional things about Wilson’s criminal past, as depressing as it is. These two further facts are important. First, there is a gap in his record between April 2010 and March 2014, a period of almost four years. He is capable of staying out of trouble. Second, he has been treated kindly by the Courts that he has appeared in front of thus far, never having been sentenced to a lengthy period of imprisonment.
[69] I should keep the latter in mind in assessing whether a jump to fifteen years in the penitentiary is reasonable in all of the circumstances.
[70] Wilson should not be deprived of his liberty if less restrictive sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).
[71] Clearly, no sentence will suffice here except for a lengthy custodial one, even taking into account the time already served.
[72] In the vast majority of cases that come before trial judges across Canada, the maximum punishment prescribed by law is just a number. It is not something that comes even close to being appropriate for the offender and the facts at hand. That cannot be said of this case. I could foresee some judges being tempted to craft an effective custodial sentence for Wilson (by “effective”, I mean one that includes the time already served), that is closer to life imprisonment than just a lengthy, single-digit penitentiary term, for example.
[73] In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself, the criminal record, and community stigma. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.
[74] The further criminal record means not much to someone like Wilson. It is so extensive already. The community stigma, I am sure, is weighty in this case. The Gladue report refers to much stress and anxiety that Wilson has experienced since his arrest more than two years ago.
The Aggravating and Mitigating Factors
[75] I have already mentioned the aggravating factors. Just the summary of the facts included above paints a picture of a nightmare: multiple fires set under the cover of darkness while persons were sleeping, many fueled by an accelerant, most if not all of them in heavily populated areas, many to private dwellings, forcing some occupants to find creative ways to exit and all of the victims to rush to escape for their lives, placing emergency personnel at serious risk of death or bodily harm as they helped to control the scenes, resulting in public hysteria and skyrocketed losses and several structures in total ruins.
[76] The massive criminal history, which does not include arsons but does include many, many property crimes, rounds out the aggravating features of this case.
[77] In mitigation, we have the guilty pleas. Even in the face of what appears to be an overwhelming Crown case given the confession and the video surveillance, and even though entered a long time after the arrest, the guilty pleas spared the administration of justice much time and avoided any of the victims having to testify at trial or even at a preliminary inquiry. The guilty pleas are also a sign of the offender’s remorse, something also mentioned in the Gladue report and displayed by Wilson in the Courtroom during the sentencing hearing.
[78] There is little else by way of mitigation except to expressly recognize that Wilson has had a troubled life and has been victimized himself - by his parents, by the child welfare system, by his addictions, and just plainly by his circumstances. This is not a case of a healthy, fortunate person with plenty of supports committing crimes out of pure unadulterated evil.
The Jurisprudence
[79] No two cases are ever the same, however, counsel have done a nice job in providing some decisions for this Court to consider.
[80] The Defence filed R. v. Fournel, [2014] O.J. No. 1889 (C.A.). After a trial, Ms. Fournel was convicted of arson and administering a noxious substance. Consecutive sentences were imposed by the trial judge, totalling five years in prison (three years on the arson). The offender was a police officer with no criminal record. She had confronted her daughter-in-law about a family dispute between the victim and the offender’s son. She spiked the victim’s drink, put her to bed and then set the house on fire. The Court of Appeal for Ontario upheld the sentence.
[81] In my view, the sentence for Wilson must be longer than that imposed on Ms. Fournel. What the latter did was grotesque, however, she was a first offender who was being sentenced for two convictions.
[82] The Defence filed R. v. Kimpe, 2010 ONCA 812, [2010] O.J. No. 5119 (C.A.). That was a domestic homicide case where Mr. Kimpe pleaded guilty to arson and pleaded not guilty to the second degree murder of his common-law wife but was found guilty after a jury trial of manslaughter. He was sentenced to ten years in the penitentiary for the manslaughter and six months concurrent on the arson. Mr. Kimpe had choked his wife, left her unconscious and then set the house on fire. He had a dated and irrelevant criminal record. Other than some adjustment to the credit for presentence custody, the Court of Appeal for Ontario upheld the sentence.
[83] Thankfully, nobody died or was seriously injured as a result of Wilson’s criminal conduct. On the other hand, the number of persons and properties affected by Wilson’s actions far exceeds the same in the case of Mr. Kimpe.
[84] The Defence filed R. v. Klair, 2004 CanLII 8965 (ON CA), [2004] O.J. No. 2320 (C.A.). Mr. Klair pleaded guilty to arson causing bodily harm and was sentenced to life imprisonment. Mr. Klair, then 70 years old, while babysitting his four-year old grandson, started multiple fires inside the house and then walked away. The child survived but sustained horrendous, devastating and permanent injuries. Mr. Klair was active in the local Sikh community and had no criminal record. The majority of the Court of Appeal varied the sentence to one of twelve years in prison, less credit for time served, for a net custodial sentence of eight years.
[85] Again, no thanks to Wilson, nobody suffered anything close to those types of injuries on August 10, 2015. But the overall damage in our case was much more widespread than the devastation left behind by Mr. Klair.
[86] The Defence filed R. v. Dawson, [2000] O.J. No. 5192. Mr. Dawson pleaded guilty to arson, two counts. He set fire to a shed, causing damage to two residences. The victim was his ex-spouse. The offender was highly intoxicated at the time. He confessed to the police. After credit for the equivalent of nine months in jail, he was sentenced to fifteen months in custody on each conviction, concurrent, plus probation for three years. It should be noted that this reported decision is very short as it appears that both sides were suggesting a reformatory jail sentence. Further, although likely not germane to my assessment, I note that the reported decision indicates the Superior Court of Justice as the sentencing Court, however, given who the Judge was, I think that is an error. Justice Lacavera, I believe, was a Judge of the Ontario Court of Justice.
[87] In my view, the sentence for Wilson must be longer than that imposed on Mr. Dawson. Setting one fire to one shed just does not compare to the rampage committed by Wilson.
[88] The Defence filed R. v. Bevacqua, 2014 ONSC 6279. After a jury trial, Mr. Bevacqua was convicted of three offences: arson endangering life, arson damaging property, and simple or common assault. On one date, the offender had beaten his wife, swelling and bruising her head and face. On another occasion, the couple argued, and the offender moved his personal belongings out of the home and set it on fire, killing a cat, endangering his wife and two children and extensively damaging the home. 44 years old, the offender had a prior criminal record for assault and breach of bail. On top of one year credit for presentence custody, he was sentenced by Justice Ricchetti of this Region to 3.5 years in prison on the arson endangering life, 1.5 years concurrent on the arson damaging property, and six months consecutive on the assault.
[89] In my view, the sentence for Wilson must be longer than that imposed on Mr. Bevacqua. The latter’s criminal history was far less extensive than Wilson’s, and the consequences of Mr. Bevacqua’s criminal conduct were less severe than in our case.
[90] Both the Crown and the Defence filed R. v. Jones, 2015 ABPC 89. Mr. Jones pleaded guilty in the Provincial Court of Alberta to ten counts of arson, four counts of break and enter, nine counts of possessing stolen property, one count of theft, and one count of mischief to property. Over a period of many months, he committed ten acts of arson at various locations throughout Wetaskiwin, Alberta. Five million dollars in property damage resulted. Lives were placed at risk. Just 29 years old, the offender had an extensive criminal record, some 42 convictions, including arsons and other property crimes. In fact, he had been sentenced to four years in the penitentiary in the year 2000 for two counts of break and enter and commit arson. On a joint submission, a global sentence of twelve years in prison was imposed. In addition, an extraordinary Order was made that Mr. Jones serve at least one-half of the custodial sentence before being eligible for full parole.
[91] Of all the cases filed by both sides, I find the Jones, supra decision the most helpful simply because the facts are the closest to ours.
[92] Both the Crown and the Defence filed the decision of the Court of Appeal for Ontario in R. v. Magno, 2015 ONCA 111. Mr. Magno was tried by a jury on charges of second-degree murder, conspiracy to commit arson, arson causing bodily harm and arson for fraudulent purposes. The jury returned a verdict of guilty on manslaughter and guilty verdicts on the three arson offences. The offender had a hardware store which had been looted. It was then set on fire, exploded and was completely destroyed. One of those who set the fire, not the offender, was killed. Another, again not the offender, was seriously injured. Mr. Magno made a substantial insurance claim. The theory of the Crown at trial was that Mr. Magno had hired someone to organize and commit the arson. In his fifties and with no criminal history, the trial judge sentenced Mr. Magno to twelve years in prison, less credit for presentence custody, for a net sentence of ten years in custody. The Court of Appeal for Ontario upheld both the convictions and the sentence.
[93] As observed previously, our case, miraculously, does not involve any death or serious bodily injury, although the sheer extent of the consequences of Mr. Wilson’s actions is greater than that in the Magno, supra case.
[94] The Crown filed R. v. Barton, [1993] O.J. No. 1231 (C.A.). Young Mr. Barton, just 21 years old, was convicted after a jury trial of 23 arson and theft offences involving dwellings in Newmarket. The charges spanned some six years. The damage exceeded one million dollars in total. The offender had a criminal record and psychiatric problems. The total sentence was varied on appeal from fifteen to twelve years in prison.
[95] The Barton, supra case is more similar to ours than many of the other cases filed by counsel. But very important is that Mr. Barton did not plead guilty.
[96] The Crown filed R. v. K.A.N., [2003] O.J. No. 1361 (S.C.J.). The female offender pleaded guilty to 19 counts of arson. There were 28 fires set, most in trash containers or dumpsters near businesses and dwellings. There were no injuries. The offender had no criminal record and was 31 years old. She had mental health problems that required multiple hospitalizations. She had formal psychiatric diagnoses upon being assessed for sentencing purposes. She was designated by the sentencing Justice as a long-term offender and sentenced to a total of four years and nine months in prison on top of four years and ten months of credit for presentence custody (an effective sentence of close to ten years’ imprisonment).
[97] The long-term offender aspect of K.A.N., supra, and the psychological make-up of the offender in that case, make that decision less useful for our purposes.
[98] The Crown also filed two reported decisions from British Columbia that simply confirm that, generally speaking, serial arsonists can expect to receive very lengthy penitentiary sentences, even double-digits: R. v. Eng, 2000 BCCA 31, [2000] B.C.J. No. 295 (B.C.C.A.) and R. v. Eng, [1999] B.C.J. No. 1588 (B.C.C.A.).
[99] Finally, the Crown filed some case law dealing with the sentencing of Aboriginal offenders in cases involving very serious offences: R. v. Monney, [2017] O.J. No. 845 (S.C.J.) and R. v. Kennedy-Money, [2016] O.J. No. 6822 (S.C.J.).
What is a Fit Custodial Sentence for Wilson?
[100] In my opinion, the Crown’s position on sentence is too long, and the position of the Defence is too short.
[101] I would be more persuaded to impose an effective penitentiary sentence in the range of 15 years if there was something else present in this case that brought it more in line with some of the cases filed, for example, serious injury to someone.
[102] Even though it involved a joint submission, Jones, supra is very helpful, as indicated above. Mr. Jones was sentenced to twelve years in prison.
[103] Let us examine the many similarities and the few differences in more detail.
[104] Mr. Jones pleaded guilty. So did Wilson.
[105] Mr. Jones was found guilty of 25 offences in total, a similar number to Wilson’s 20.
[106] Mr. Jones’ arsons spanned many months, while Wilson’s all took place in one early morning. The former causes even heightened terror in the community, I agree with Mr. O’Connor. But the latter is even harder to handle for emergency personnel and arguably involves even greater risk of catastrophe.
[107] Mr. Jones committed the arsons in a relatively small place in rural Alberta, not much different than our area.
[108] Both Mr. Jones and Wilson caused a few million dollars in property damage, though Mr. Jones even more than Wilson.
[109] Mr. Jones and Wilson are of similar ages.
[110] Both have extensive criminal records, although Mr. Jones’ even worse because of the prior arsons.
[111] Mr. Jones burned predominantly commercial structures, while Wilson’s carnage was worse as it was directed mainly towards residences.
[112] Finally, it does not appear that Mr. Jones is Aboriginal, as is Wilson. I agree with Mr. Martin, however, that what Wilson did is so serious that the Gladue principles do not justify a marked, if any, departure between what would be a fit sentence for him and what a non-Aboriginal offender in like circumstances might receive.
[113] I repeat that the key to sentencing is to impose something that is proportionate to the gravity of the offences and the degree of responsibility of the offender.
[114] I would place the moral blameworthiness of Wilson at a level just below that of Mr. Jones. Jones did not bring to the table the Aboriginal background and the rather depressing familial history that exists in our case. And what could be worse than a repeat arson offender, Mr. Jones, who starts multiple fires even after being incarcerated for a significant period of time for the same offence in the past.
[115] On the other hand, I would place the gravity of Wilson’s offences at a more serious level than those committed by Mr. Jones. Wilson targeted dwellings. The victims, most of whom would have been sleeping, were awakened to terror and had to flee for their lives. That is simply not comparable to the torching of commercial and industrial premises, as Mr. Jones did.
[116] After much reflection, I have decided to impose a sentence on Wilson that is the equivalent of that received by Mr. Jones. I am convinced that it is a fit sentence for Wilson.
V. Conclusion
[117] In addition to the section 109 and DNA Orders mentioned above, the sentence of the Court is as follows: twelve (12) years or 4380 days in the penitentiary, less credit of 1207 days for presentence custody, for a net sentence of imprisonment from today of 3173 days.
[118] That means that Wilson is facing close to another eight and three-quarters (8.75) years, approximately, in jail.
[119] Counsel made no submissions on the breakdown of the custodial sentence.
[120] It seems to me that count one, the arson endangering life with regard to the apartment building, should attract the most punitive sentence. It also would be appropriate to impose shorter sentences for the section 434 convictions. Finally, all sentences will be made concurrent to one another.
[121] Thus, on count one, the sentence is as per the above, with the full credit for presentence custody being applied to that conviction.
[122] On every other conviction under section 433(a), the sentence is 3173 days in custody, concurrent.
[123] On each conviction under section 434, the sentence is two years or 730 days in custody, concurrent.
[124] I repeat, the global sentence is twelve (12) years or 4380 days in the penitentiary, less credit of 1207 days for presentence custody, for a net sentence of imprisonment from today of 3173 days.
[125] This Court recommends that the said custodial sentence be served at a facility where Wilson can be treated for his alcohol addiction. This Court endorses the recommendations made by Ms. Hay, the author of the Gladue report, and directs that the said report, together with that of Dr. Gojer, be sent to the correctional authorities to help with the placement of Wilson in an appropriate institution given his Aboriginal heritage and his substance abuse problem.
[126] I hope that Wilson is released from jail a better person than he has shown in the past. I am optimistic that he can do it.
[127] I commend the police, firefighters, paramedics, medical professionals and the citizenry of the City of Owen Sound for their bravery, their heroic actions and their dedicated service in the early morning hours of August 10, 2015.
[128] Finally, I thank counsel, Mr. Martin and Mr. O’Connor, for their able assistance with this difficult case.
Conlan J.
Released: October 26, 2017
CITATION: Her Majesty the Queen v. Wilson, 2017 ONSC 6383
COURT FILE NO.: CR-16-006-0000
DATE: 20171026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Donald Wilson
Accused
REASONS FOR SENTENCE
Conlan J.
Released: October 26, 2017